One angry man.

One angry man.

One Angry Man

The lament of the peremptorily challenged.

A couple of years ago, I was denied my rights in a Newark courtroom. What happened to me is a dirty little (open) secret of the American justice system. It happens hundreds of times every day during jury selections around the country. It's called a "peremptory challenge." But because I'm a 40-something male mutt of Northern European extraction, the U.S. Supreme Court does not recognize me as a "suspect class" under the equal protection clause of the Constitution. Discrimination against middle-aged white men raises no constitutional eyebrow, in other words. So, I had no recourse.

The process is not completely irrational. At the start of a jury trial, opposing counsel and the judge question potential jurors in order to weed out candidates who are too biased or conflicted to serve as disinterested fact-finders. Under challenges for cause, attorneys must convince the judge that specific would-be jurors are demonstrably prejudiced or have some relevant relationship to a party in the proceedings that calls into question their fair-mindedness at trial. Makes sense.

But in most courts, each side also can exercise a passel of peremptory challenges. Through these, they may dismiss potential jurors without providing any reason at all. That's what happened to me. I'd been called for a case involving two black guys accused of dealing drugs near a school. A bunch of us had survived questioning about whether we could be fair, but in the ensuing hour the prosecution and defense proceeded to winnow the pool further.

When defense counsel said, "Number Eight, excused," I was gone. No questions asked, no reasons given.

Defenders of peremptories—including many if not most trial attorneys—note that the practice dates back to ancient Rome. They argue that prejudice is often hidden, intentionally or accidentally, and that the flexibility afforded by arming counsel with unexplained dismissals is a time-tested way to admit a hint of lawyerly intuition into the system. They say it improves all litigants' confidence in the process, and that its equal availability to both side makes it fair. But what is fair about unexplained bias?

It's certainly true that the practice of peremptories is far better administered than it used to be. It once justified shocking racial bias. As recently as 1965, in Swain v. Alabama, the Supreme Court essentially authorized purely racist peremptories by requiring a given objector to prove the prosecutor had an established record of discriminatory strikes in prior cases. One commentator labeled this "the constitutional blueprint for the perpetuation of all-white juries." Only in its 1986 decision Batson v. Kentucky did the court finally outlaw peremptories made solely on the basis of race, and only in 1994 did it add peremptories based on gender to that prohibition. Peremptories based on some ethnicities are also now banned.

But in practice this all amounts to a fairly empty admonition. Although Batson challenges are commonplace today, one study (see Footnote 10) of 76 cases involving Batson hearings in federal courts found a meager 3 percent of cases in which the striking of minority jury candidates was ruled unlawful. That's because Batson erected a serious barrier to objectors. Even if they can show that all or most potential jurors from one of the three protected categories were nixed, peremptories can still survive if the attorney who made them has the thinnest doily of a counter-explanation. ("It wasn't because he was black, your honor, it was because he's a doctor …" or "It's not 'cause she's a woman, your honor, it's 'cause she lives in a neighborhood that's just like the victim's.") As long as the lawyer who jettisoned the juror offers a plausible bias other than race or gender, the dismissal stands.

In a Texas death-penalty appeal argued before the Supreme Court just this month, the black appellant argues that his conviction 19 years ago (pre-Batson) was invalid because the prosecution struck 10 of 11 black jurors—six of which strikings are now at issue. The state said it dismissed those jurors because they were mushy on the death penalty. Appellate Counsel Seth P. Waxman (solicitor general in the Clinton administration) argued that the state's motives were transparent; that they'd accepted whites who were just as ambivalent on the death-penalty issue. The-ever spunky Justice Antonin Scalia raised the state's banner, noting that it had proffered the necessary explanation for each rejection and that the burden was on Waxman to make any "buckshot attack" on the jury through a "pellet by pellet" examination.

Waxman had common sense on his side. He leapt to a different analogy, invoking a pointillist Seurat canvas that cannot be parsed up close: "As a reviewing court, you have to step back and look at this," he urged. But as any law-school student who has made the mistake of invoking "common sense" to an officious professor can tell you, the law often proceeds along a more exotic logic.

The Batson debate doesn't even address all those classes of jurors who enjoy no protection under the current interpretation of equal protection. Never mind the middle-aged male mutts of Northern European extraction: The wrinkled, the pierced, the fat, the crippled, the unemployed, the devout, the degreed (why do you think no college graduates sat on O.J.'s trial?) all can be spiked willy nilly from jury service by someone who has passed the bar and has an "intuition" about group identity.

One irony of this is that "peers" are among the first to be bounced from panels, because we can't, of course, trust Latinos to weigh evidence against Latinos, or dentists to do the same with doctors. But the costs are broader. Rich defendants buy high-priced consultants to sift would-be jurors through a sieve of identity politics (a reality that's either profoundly unfair or profoundly wasteful, depending on your view of their effectiveness). And those with the weakest cases can game the system by dumbing down the 12 through peremptory legerdemain.

The result is surely better than the old days of juries dominated by white male property owners. But it's also become a race to the bottom—with character and intelligence excised from this important instrument of democracy in a dance of blandification. As long as jury candidates can be excused for something other than real cause, all of society's "isms" will find their way into the dynamic impelling the dismissals.

On occasion, it is likely that peremptories have been exercised by wise and well-intentioned advocates who used their intuition to keep a bigot or conspirator off a panel. But let's recall that England gets along just fine without them*. And in the aggregate, the common costs far outweigh the rare benefits. There's enough sub rosa racism in the system as it is. The peremptory challenge's effect is to disguise it, not minimize it. In reality, it's little more than an invitation to judge-approved jury rigging.

The goal here is not to increase the population of white male jurors. The goal is to pick juries based on fairness and open-mindedness, rather than weight, socio-economics, or facial hair.

Correction, Dec. 22, 2004: This article originally also cited Canada as being without peremptories. Canadian law actually does provide for peremptory challenges in Sec. 634 of the Criminal Code of Canada.

Dirk Olin is director of the Institute for Judicial Studies and editor of JudicialReports.com.